In petitioner’s Penal Code section 1172.6 proceedings, trial court violated his due process rights by redesignating murder convictions as a robbery without notice and opportunity to be heard. Del Rio, convicted of two first degree murders in 1978, filed a petition for resentencing under Penal Code section 1170.95 (now 1172.6). The record in his case was no longer available so, at the (d)(3) hearing, the prosecution was unable to prove beyond a reasonable doubt that Del Rio was ineligible for resentencing. The trial court vacated the conviction, redesignated robbery as the basis for conviction, and resentenced Del Rio on the robbery. On appeal, Del Rio argued the trial court violated his due process rights because he had no notice the court might take this action. Held: Reversed. As a matter of procedural due process Del Rio was entitled to know “which crimes the prosecution sought to have redesignated as underlying felonies, the length of sentence the prosecution proposed, and how that recommended sentence was calculated.” (Quoting People v. Silva (2021) 72 Cal.App.5th 505, 523.) The failure of the prosecution and the trial court to give this notice violated Del Rio’s due process rights and the error was not harmless.

There was no reliable evidence to support the robbery conviction. The trial court did not make any factual findings at the section 1172.6 hearing before convicting Del Rio of robbery and imposing a revised sentence. “In cases in which the underlying felony or target offense was never charged, the resentencing judge necessarily must identify the appropriate redesignated offense and make factual findings on the petitioner’s guilt.” (Quoting Silva, supra, 72 Cal.App.5th at p. 530.) The prosecution argued the procedural histories of the prior appellate opinions in the case and the factual recitation in a 1978 probation report (which contained hearsay) supported the court’s implied finding that Del Rio committed robbery. The Court of Appeal disagreed. Courts have held that the prosecution’s proof of the underlying felony or target offense must be found in the record of conviction and, ordinarily, a probation officer’s report is not part of the record of conviction. However, some courts have allowed limited use of reliable hearsay evidence from probation reports when determining eligibility for resentencing under other resentencing laws. Even assuming “the trial court could consider reliable hearsay evidence in choosing an uncharged target offense to form the new basis for conviction, the probation report here was neither admissible nor reliable.”